Illinois Official Reports

Appellate Court

People v. Eubanks, 2021 IL App (1st) 182549

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

DERRICK EUBANKS, Defendant-Appellant.

District & No. First District, Fourth Division 

No. 1-18-2549

Filed

Rehearing denied

June 30, 2021

July 22, 2021

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 15-CR-4629; the 

Hon. Erica L. Reddick, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Douglas R. Hoff, Gavin J. Dow, and Stephanie T. 

Puente, of State Appellate Defender’s Office, of Chicago, for 

appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg 

and Matthew Connors, Assistant State’s Attorneys, of counsel), for the 

People.
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Panel PRESIDING JUSTICE GORDON delivered the judgment of the 

court, with opinion.

Justices Reyes and Martin concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Derrick Eubanks1 was convicted, after a jury trial, of robbery and domestic 

battery and sentenced to 10 years with the Illinois Department of Corrections for the robbery 

and to a concurrent six-year sentence for the domestic battery. 

¶ 2 On this direct appeal, defendant claims (1) that the evidence was insufficient, (2) that he 

was denied his right to a fair trial when the trial court denied his request to excuse a juror for 

cause, and (3) that the trial court’s alleged failure to ensure that the jury accepted the 

presumption of innocence constituted plain error where the evidence was closely balanced. 

¶ 3 For the following reasons, we do not find his claims persuasive and affirm.

¶ 4 BACKGROUND

¶ 5 At trial, the State’s evidence established that defendant and Machelle Richards had been 

dating, that Richards tried to end the relationship but defendant still pursued and followed her, 

and that, on December 10, 2014, they had a physical struggle in her apartment that led to the 

current charges. Richards, a Chicago school teacher, testified that defendant choked her during 

the struggle so that she could barely breathe. At trial, defendant exercised his right not to 

testify. A friend of Richards testified about events both immediately before and immediately 

after the struggle in her apartment. However, only defendant and Richards were present in 

Richards’s apartment during the struggle. 

¶ 6 The State’s case began with other-crimes evidence. The first witness called at trial was 

Yashica Green, a former girlfriend of defendant, who testified that defendant had also choked 

her.

¶ 7 Green testified that defendant was the father of her child. On February 9, 2006, she and 

defendant were dating. At 8:30 p.m., she pulled her vehicle in front of her apartment building, 

exited her vehicle, and began removing items from it. Defendant appeared from around a 

corner and approached, saying “Where the F you been?” Defendant pushed Green against the 

concrete wall of her apartment building, so that her back hit the building, and he started 

strangling her. Defendant placed his hands around her neck, choking her, while claiming that 

she had cheated on him. Green testified that a police vehicle suddenly pulled up and two 

Chicago police detectives exited their vehicle and “stopped” defendant. Defendant “kept trying 

to come at” Green, and the detectives “kept pushing him back.” When the detectives asked 

Green “if everything was okay,” Green responded that she wanted defendant to leave her alone. 

While the detectives spoke with defendant, Green entered her building, retrieved some items 

from her apartment, returned to her vehicle, and drove to her sister’s house. When she exited 

1

In his brief to this court, defendant alleges that his first name was misspelled in the trial court and 

that it should be spelled “Darrick.” Since all the relevant court documents bear the spelling “Derrick,” 

we use this spelling as well, for consistency’s sake.
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her building to enter her vehicle, the detectives were still outside with defendant, and Green 

declined their request to come to the police station. After the attack, Green had scratches on 

her neck and marks on her back. 

¶ 8 Leon Burch, age 50, testified that he had known Machelle Richards, the victim in the instant 

case, for 20 years. Burch and Richards had previously worked together when he was a security 

guard at a Chicago public school. On December 10, 2014, Richards picked Burch up between 

8 and 9 a.m. and gave him a ride to a doctor’s appointment and then to a meat market. During 

the ride to the market, Richards received phone calls, and after they exited the market, Burch 

observed defendant walking up to Richards’s vehicle. Burch testified that he identified 

defendant “vaguely” since Burch had observed him only twice before. 

¶ 9 Burch testified that, as he and Richards were sitting in the front seat of her vehicle, 

defendant entered the back seat. Defendant remained there for 5 to 10 minutes while Richards 

asked defendant multiple times to leave. Burch recalled defendant saying “F*** the police” at 

some point during their argument. Richards and defendant were “[a]rguing back and forth,” 

with their voices “raised, at points.” After Richards informed defendant that she needed to 

return to Burch’s home so that Burch could pick up his children from school, defendant exited 

her vehicle. As Richards was driving back to Burch’s home, Burch observed defendant 

following in his vehicle, all the way back to Burch’s home. After Richards dropped Burch at 

his home and drove away, Burch observed defendant continuing to follow her.

¶ 10 Since defendant claims on appeal that no rational juror could have found the victim’s 

testimony credible, we provide her testimony in detail below. 

¶ 11 Machelle Richards, age 42, testified that she had been a Chicago public school teacher for 

13 years. Richards lived in Chicago all her life and had known defendant since childhood. 

Richards and defendant dated “[o]n and off” for a year, with the relationship ending on 

November 22, 2014, when she filed a police report regarding his wrongful conduct. After filing 

the report, Richards stopped answering defendant’s phone calls and cut off communication 

with him. 

¶ 12 Richards testified that, on October 9, 2014, at 4 p.m., she and defendant met at 17th Street 

and Harrison Avenue in order to talk. The conversation became heated, and she tried to walk

away. Defendant grabbed her arm, and she threw some orange juice, which she had in a plastic 

container, in his face. In response, defendant hit her in the face with an open palm, causing a 

cut on her nose. After Richards entered her vehicle, defendant opened the trunk of her vehicle 

and began throwing its contents over a high security gate that was nearby. The contents 

included new books for the school year starting in January that she had just received. Defendant 

fled in his vehicle while Richards was on her cellphone with the police. Richards subsequently 

filed a police report, but she did not pursue it because “[i]t was embarrassing. I’m a teacher I 

just wanted to *** go my separate way.”

¶ 13 Richards testified that defendant continued to contact her through phone calls and text 

messages, although she had stated that she wanted no further communication. Richards did 

respond to “[s]ome of them.” On December 10, 2014, at 6 a.m., she was at home getting ready 

for work when she received more than 10 phone calls from defendant. Richards answered one 

of the calls because, the day before, defendant had sent her a text message depicting himself 

standing outside of her building and she wanted to make sure the area was “clear.” Richards 

agreed to meet defendant in Hyde Park later that day to talk, although she had no intention of 

doing it. 
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¶ 14 Richards testified that, later that day, she drove her friend, Leon Burch, to a doctor’s 

appointment and then to a meat market. While they were at the meat market, she received text

messages from defendant, asking where she was, since she had agreed to meet him in Hyde 

Park; she told him at that point that she was at the meat market with Burch. Richards testified 

that, after she and Burch exited the market and entered her vehicle, defendant “came out from 

out of nowhere” and sat in the back seat of her vehicle. Richards was “just stunned.” Defendant 

asked her why she was lying, and she asked him repeatedly to exit her vehicle. When he 

remained in the vehicle, she exited and walked in back of her vehicle, saying that she had to 

go to work and Burch had to pick up his children. Defendant opened the door and put one leg 

out but did not exit. Richards observed police officers near the meat market and asked, “do I 

have to flag a police car down? Can you just get out of the car?” Defendant responded that he 

did not “give an F about the police.” 

¶ 15 Richards testified that she did not flag down an officer because she felt safe with Burch 

present. Richards returned to the driver’s seat. When Burch asked defendant to exit because he 

had to pick up his kids, defendant exited the vehicle. As Richards was driving toward Burch’s 

house, she observed in her rearview mirror that defendant was following her. Richards raised 

her middle finger out the window toward him. Defendant followed Richards to Burch’s house. 

After dropping off Burch, Richards drove to the school where she worked and found defendant 

already there. He approached her vehicle, saying he wanted to talk, and entered her vehicle, 

sitting in her front passenger seat. Defendant wanted to know how they could work things out, 

and she told him there was no way. When defendant refused to exit, Richards exited her vehicle 

and walked toward the school. Defendant began “using language saying what the F,” but 

Richards kept walking. After entering the building, she told the security guard that someone 

was threatening her in the parking lot. However, when Richards and the security guard turned 

to the security camera, they realized that defendant’s vehicle was no longer present.

¶ 16 Richards worked her shift2 and punched out. An hour before her shift ended, she texted 

defendant, asking him to leave her alone. Defendant texted back that he would meet her at her 

home. An hour later, when she left work, she called her neighbor, “Uncle Cliff,”3 to let him 

know that she had been followed all day and to look out for her and that she would be home 

soon. Cliff lived with Tiffany DeBack on the first floor of the same building where Richards 

lived on the second floor. When Richards arrived home, she did not observe defendant. 

However, she sat in her vehicle and called Cliff; he exited the building to meet her. As they 

were entering the building, Richards told Cliff she was going to spray a solution in the common 

area of the building because her dog had pooped that morning on the carpet. Since the solution 

required ventilation, Richards opened the front door before starting to spray. 

¶ 17 As Richards was on the stairs spraying the solution, defendant entered the front door 

saying, “Why are you so evil? You didn’t see me calling you.” Richards started backing up the 

stairs, with defendant following her. Richards turned and ran to her apartment while screaming 

Cliff’s name. Defendant pushed Richards into her apartment and locked the door behind them. 

When Richards asked defendant what he wanted, he went on his knees “in a praying position,” 

2 On cross-examination, Richards clarified that on December 10, she was working “in 

administrative,” rather than as a teacher.

3

Tiffany DeBack later testified at trial that “Cliff” was her father-in-law, Clifton Arnold. However, 

since the victim referred to him only as “Cliff” or “Uncle Cliff,” we use that name as well. 
- 5 -

and she ran to the door, but he blocked it. While standing by the door, he started crying and 

saying he was going to leave, and she said, “Thank you.” But, instead of leaving, he went into 

her bedroom, and she followed him, saying “I thought you was about to leave.” He replied, no, 

that he was going to watch television, and he picked up the remote. Richards snatched the 

remote from him, saying “No, the F you’re not,” and that is when defendant grabbed her by 

the neck with one hand. His thumb and index finger were open and around her neck, with the 

rest of his hand pressed against her throat. 

¶ 18 Defendant pushed Richards on the bed by her neck, so that she was lying on the bed on her 

back. Defendant hovered over her, on top of her, with one leg on either side of her body, and 

choked her, with one hand around her neck. Richards testified that she started “fighting him, 

scratching, whatever [she] could do.” As she fought, his grip tightened and she could not 

breathe. Richards “saw [her] life flash before her eyes.” Since defendant is tall and since he 

did not have his body pressed against her, it was hard for her to reach him to scratch. At one 

point, when she was trying to reach up to scratch him, he bit her right middle finger. Eventually, 

she went limp and stopped fighting. Defendant removed his hand, and she was gasping for 

breath. She kept repeating that she could not breathe, and he stood up. After a few minutes, 

she stood up, holding the wall and stumbling to her bedroom door, where she collapsed and 

urinated on herself. Defendant picked her up off the floor and was holding her against the wall, 

while Richards repeated that she could not breathe and asked for water. Defendant permitted 

her to walk to the kitchen, where she grabbed her cell phone and rushed into the living room. 

Defendant was right behind her, so she stuffed her hand with the phone under her sofa cushions. 

Defendant was on top of her, and they tussled over the phone, while she was on her knees, in 

front of the sofa. Defendant twisted her wrist and gained the phone. Fearing for her life, 

Richards ran into the kitchen and grabbed a knife. Defendant told her that if she stabbed him, 

he would stab her, so she dropped the knife. While saying that he did not want to fight, 

defendant shook Richards by her arms. Richards tried to fight back, begging him to let her go. 

Instead, defendant smacked her with an open hand on the right side of her face, she fell to the 

floor, and he dropped the cell phone. After he dropped the phone, she dived for it, and they 

began tussling over it again. During the fight, the phone “[s]omehow” dialed her voicemail, a 

fact that she did not realize until later. 

¶ 19 At some point, Richards ripped defendant’s vest and he let her go, and she ran out the back 

door and down the stairs, screaming “Uncle Cliff.” Cliff and DeBack’s apartment door opened 

and she ran inside, saying “Call the police. Call the police.” While Richards was in the kitchen 

telling them what had happened, they heard “a lot of crashing” coming from upstairs in 

Richards’s computer room, as though things were being broken. DeBack’s kitchen is 

connected to Cliff’s bedroom, and Richards’s computer room is right above his bedroom. Then 

they heard defendant running down the stairs, and DeBack opened her door and said “I’m 

calling the police.” Defendant replied, “B***, I don’t care.” Richards asked DeBack to go with 

her to retrieve Richards’s phone because, otherwise, “at a touch of a button he has my bank 

account.” DeBack and Richards exited through the side of the house and walked to the front, 

where Richards observed defendant in his vehicle parked in front of the building. Richards 

opened the back door of defendant’s vehicle, while defendant was in the driver’s seat, to try to 

prevent him from leaving with her cell phone. Defendant started driving his vehicle forward 

and back and “totaled” a neighbor’s vehicle that was parked in back of defendant’s vehicle. 
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Defendant backed his vehicle into the neighbor’s vehicle twice, striking the front of the 

neighbor’s vehicle. 

¶ 20 Richards testified that the police arrived 10 seconds after defendant drove off. The next 

day, Richards went to a courthouse to press charges and obtain a restraining order. Richards 

identified a photo taken on December 10, 2014, as a photo of her middle finger on her right 

hand showing torn skin and two photos taken the day before trial of the same finger showing 

scarring. Richards identified a photo also taken on December 10, 2014, of her computer room 

after defendant left, which she testified shows that her desktop computer was missing and that 

her printer was broken. Richards testified that her computer had been in her apartment prior to 

the struggle. Richards testified that the photo depicted “an extra PC” laying sideways on the 

floor, which she testified was previously on top of her computer desk. In court, Richards 

identified an exhibit as the shirt she wore on December 10, and it was ripped, and she testified 

that it was not ripped prior to defendant’s assault. Richards also identified an exhibit as 

defendant’s vest which she had found in her backyard on December 10 after defendant left. 

Both exhibits were admitted into evidence.

¶ 21 On cross-examination, Richards clarified that defendant had stolen two computers from 

her: her laptop computer on November 22, 2014, and her desktop computer on December 10, 

2014. Richards admitted that, on December 10, 2014, she did not observe a computer in 

defendant’s hands or in his vehicle and that she did not visit a doctor after the offense. She 

weighed 220 pounds at the time of the offense and is five feet and three inches tall. Richards 

had a friend, China Robinson, who worked at a phone company and, who, at Richards request, 

retrieved the voicemail from Richards’s phone that had inadvertently made an audio recording 

of part of the incident.

¶ 22 Detective David Scarriot testified that he had worked for the Chicago Police Department 

for 20 years. On December 30, 2014, he met with Richards at a police station, where she 

showed him an injury to her finger. Scarriot also met with Robinson and recorded a voicemail 

from Robinson’s phone onto a compact disc, which was admitted into evidence. In addition to 

Richards’s case, Scarriot was assigned a case in which defendant claimed to have been the 

victim in the same incident at issue. On December 10, 2014, at 6 p.m., which was an hour and 

a half after the police had been called to Richards’s home, defendant went to a police station 

about 20 miles away from the incident to report that he had been the victim of domestic 

violence. Scarriot did not speak with defendant until December 19, 2014, when defendant 

informed the detective that he already had a court date regarding the incident that he intended 

to attend. 

¶ 23 The State recalled Richards, who testified that her voicemail had inadvertently made an 

audio recording of the struggle in the kitchen between herself and defendant, that she had 

listened to both the original recording and a subsequent recording of it by Robinson, that the 

original recording was a true and accurate recording of the struggle in the kitchen, and that the 

subsequent recording by Robinson was a true and accurate recording of the original voicemail. 

The trial court admitted the audio recording for the limited purpose of corroborating the 

witness’s testimony that a recording had been made,4 and the recording was played for the 

4

Later, when the jury asked during its deliberations to listen to the recording, the trial court observed 

that “it was admitted for a limited purpose. So my concern is *** having them engage in the exercise 
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jury. At the start, a mechanical voice states that the message was recorded at 4:33 p.m. The 

recording is not clear but one can hear clearly the high-pitched voice of a woman in distress, 

crying and screaming. Richards identified the female voice as hers. 

¶ 24 Tiffany DeBack, age 35, testified that Richards was her neighbor for over five years, when 

they lived in a two-flat building. Richards lived upstairs, and DeBack lived downstairs with 

several people, including her father-in-law, Clifton Arnold. At 5:30 p.m. on December 10, 

DeBack had just arrived home after working a 12-hour factory shift and turned on the 

television. DeBack heard a muffled yell, which she thought was Richards’s dog. When the 

noise continued for five minutes, DeBack opened the front door to determine if someone was 

hurting the dog, but she observed the dog was okay. DeBack was heading toward the back 

door, when she heard Richards say, “ ‘Uncle Cliff, call the police.’ ” Since DeBack had her 

phone in her hand, she called the police and yelled upstairs, “ ‘I’m calling the police.’ ” In 

response, she heard defendant say, “ ‘B***, f*** the police,’ ” and DeBack locked her door. 

Then Richards and defendant came down the stairs, with Richards smelling like urine and 

looking scared. Richards was crying, her face was swollen, and she looked like she was in 

shock. DeBack testified that she knew Richards had urinated on herself because DeBack 

smelled it and Richards’s shoes were “going squeak, squeak.”

¶ 25 DeBack testified that, when they were inside DeBack’s apartment, they heard “boom, 

boom,” which sounded like a car accident and which she discovered later was the sound of 

defendant’s vehicle striking their neighbor’s vehicle. DeBack and Richards exited the building, 

went around the back and then to the front, where they observed defendant in his vehicle 

driving his vehicle backward and hitting the vehicle parked behind him, so that his vehicle 

“pushed her whole hood all the way in.” Defendant drove forward and back, hitting the 

neighbor’s vehicle a second time. As defendant drove away, the police arrived. Defendant’s 

vehicle was only two blocks away when the police arrived. 

¶ 26 On cross-examination, DeBack testified that, when she arrived home from work and 

entered the front door, Richards was by the front door, cleaning where her dog had pooped that 

morning. When DeBack observed defendant exiting the building, he was “carrying something 

under his arm.” 

¶ 27 After DeBack’s testimony, the State rested, and the trial court denied defendant’s motion 

for a directed finding. 

¶ 28 The defense recalled DeBack as its first witness. DeBack testified that she did not recall 

whether she told Detective Scarriot that defendant had something in his hands, but she did 

recall that defendant had something in his hands. When DeBack and Richards were in front of 

the building after the incident, Richards was “yelling, ‘He got my phone and my computer.’ ” 

DeBack explained: “the only reason she was following him was because he had her phone and 

her computer.” On December 30, 2014, Richards testified in court at a hearing for a protective 

order. After reading a transcript of the hearing, she confirmed that she had not testified at that 

time to observing something in defendant’s hands. On cross-examination, she explained that 

the hearing was solely about “domestic violence.” At the hearing, she testified that she 

observed defendant run down the stairs after she said she was going to call the police, that 

defendant stated “ ‘F*** the police,’ ” and that he hit the neighbor’s vehicle. 

of trying to decipher the content of what’s being said in the video as opposed to *** hearing the audio 

for the limited purpose of corroborating her claim that it captured [a] portion of the event.” 
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¶ 29 Officer Loretta Wiechert testified that, on December 10, 2014, she was on patrol with her 

partner in a marked squad vehicle and in uniform, when they responded to a call at 4:40 p.m. 

about a battery in progress and arrived at Richards’s building at 4:50 p.m. When Wiechert 

arrived, she did not observe any vehicles speeding away. Wiechert, who made a police report, 

did not notice or smell urine when speaking with Richards. When Wiechert informed Richards 

that Wiechert would like an evidence technician to come to the scene, Richards replied that 

Richards could not stay and wait for an evidence technician at that time. 

¶ 30 On cross examination, Weichert testified that Richards appeared “visibly upset, distraught, 

shaken.” Richards “appeared disheveled” and was “not communicating very well” and was 

“trying to clean up.” After entering Richards’s apartment with Richards, Weichert observed 

that the apartment was “in disarray,” with items out of place, “just like there had been some 

sort of incident.” Weichert completed a case report concerning the battery and an accident 

report concerning a damaged vehicle that Weichert observed and that defendant had reportedly 

struck. On redirect, Weichert testified that she did not call for an ambulance. 

¶ 31 Officer Peter Masheimer testified that, on December 10, 2014, he was working at a desk, 

in order to assist citizens who came in from the street seeking police assistance. Officer 

Masheimer recalled speaking to a man at 6 p.m. with defendant’s name, but the officer could 

not identify defendant in court. While defendant was in the process of reporting a domestic 

violence incident, Officer Masheimer observed that defendant’s sweatshirt was torn at the 

neckline and that defendant had superficial lacerations or scratches to his chest. After 

completing a report, Officer Masheimer referred the case to the domestic violence unit. On 

cross examination, the officer noted that he offered medical assistance, which defendant 

declined. Officer Masheimer informed defendant how he could obtain an order of protection 

and how he could seek a warrant for the arrest of the offender. 

¶ 32 After listening to closing arguments and jury instructions, the jurors retired to deliberate. 

About an hour later, they sent out a note asking to listen again to the audio recording. After 

receipt of the note, the trial court stated: 

“[The court’s] concern is misuse of this evidence. They’re going to spend undue time 

trying to play it and play it back to decipher what’s being said when it is not introduced 

into evidence for that purpose, it’s solely introduced to corroborate [the victim’s] 

claims that a portion of this event was captured by this *** voicemail message.” 

Before sending the audio recording back to the jury, the trial court provided the following

response and limiting instruction:

“Yes, you may listen to the audio recording again. You’re further instructed that 

this audio recording was introduced into evidence for the limited purpose of 

establishing whether a portion of the incident was captured by voicemail. This audio 

recording evidence should not be considered by you for any other purpose.”

¶ 33 The jury continued its deliberations for over an hour and reached a verdict, finding 

defendant guilty of robbery and domestic battery but not guilty of home invasion and 

aggravated domestic battery.

¶ 34 On September 19, 2018, the trial court denied defendant’s posttrial motion for a new trial. 

On October 2, 2018, the trial court sentenced defendant as a Class X offender to 10 years for 

robbery, to be served concurrently to a 6-year sentence for domestic battery. On October 31, 

2018, defendant placed a pro se notice of appeal in institutional mail, which was filed by the 
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trial court on November 7, 2018. On November 16, 2018, the trial court issued a written order 

finding that the notice had been timely filed and appointing the State Appellate Defender. This 

appeal followed. 

¶ 35 ANALYSIS

¶ 36 I. Sufficiency of the Evidence

¶ 37 Defendant’s first claim is that the evidence against him was insufficient to convict him of 

the charges because Richards’s testimony was allegedly contradicted and uncorroborated. 

¶ 38 When an appellate court is asked to consider the sufficiency of the evidence after a trial, 

our function is not to retry the defendant. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011). Instead, 

we determine whether, after viewing the evidence in the light most favorable to the State, any 

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt. Beauchamp, 241 Ill. 2d at 8. In this determination, we draw all reasonable inferences 

from the record in favor of the State. Beauchamp, 241 Ill. 2d at 8. A reviewing court will not 

reverse a conviction unless the evidence is so improbable, unsatisfactory, or inconclusive that 

it creates a reasonable doubt of the defendant’s guilt. Beauchamp, 241 Ill. 2d at 8. Also, a 

conviction may generally be sustained on circumstantial evidence alone. Beauchamp, 241 Ill. 

2d at 9.

¶ 39 Our supreme court has “consistently held that the testimony of a single witness is sufficient 

to sustain a conviction if the testimony is positive and credible, even if it is contradicted by the 

defendant.” People v. Harris, 2018 IL 121932, ¶ 27. It is the trier of fact, not the reviewing 

court, that is “responsible for resolving conflicts in the testimony, weighing the evidence, and 

drawing reasonable inferences from the facts.” Harris, 2018 IL 121932, ¶ 26.

¶ 40 In the case at bar, defendant was found guilty of count IV, robbery, “in that he, knowingly 

took property, to wit: a mobile phone and a computer, from the person or presence of Machelle 

Richards, by the use of force or by threatening the imminent use of force.” See 720 ILCS 5/18-

1(a) (West 2018). 

¶ 41 Defendant was also found guilty of count VIII, domestic battery, “in that, he knowingly, 

without legal justification, by any means caused bodily harm to Machelle Richards, to wit: 

grabbed and struck Machelle Richards about the body, and Machelle Richards was a family or 

household member, to wit: Machelle Richards and [defendant] have had a dating relationship.” 

See 720 ILCS 5/12-3.2(a)(1) (West 2018). 

¶ 42 First, defendant argues that the fact that the jury convicted him of the above two counts but 

acquitted him of home invasion and aggravated domestic battery must mean that the jury did 

not believe Richards’s testimony that defendant entered her home against her will or that he 

strangled her. However, these two facts are not needed for the offenses that he was convicted 

of. 

¶ 43 Second, defendant argues that the fact that DeBack did not hear Richards screaming “Uncle 

Cliff” when Richards and defendant entered Richards’s apartment must mean that Richards 

was not, in fact, screaming for Uncle Cliff at the start of the encounter and that, therefore, 

defendant did not enter against her will. However, DeBack testified that, even after she had 

turned on the television, she still heard a sound of distress, which she attributed to the dog and 

which caused her to exit her apartment to investigate. In addition, unauthorized entry was not 

a fact needed for either of the two counts of which defendant was convicted. 
- 10 -

¶ 44 Third, defendant argues that Richards’s testimony of a near-death strangulation was 

improbable. However, as noted above, this fact was not necessary for the counts of which 

defendant was convicted. In his brief to the court, defendant acknowledges that the above 

factual weaknesses that he argues do not “amount to a failure of proof on robbery and domestic 

battery.” 

¶ 45 Fourth, defendant argues that there was “little to no evidence of bodily harm,” which is a 

fact needed for domestic battery. See 720 ILCS 5/12-3.2(a)(1) (West 2018). However, 

Richards testified to an injury to her finger, and photos were admitted that showed torn skin at 

the time of the offense, as well as present-day scarring. In addition, Richards testified to being 

struck, shaken, and generally beaten by defendant. 

¶ 46 Fifth, defendant argues that Richards’s testimony that defendant took property from her 

during the incident was unsubstantiated. Although there was no requirement for Richards’s 

testimony to be substantiated, it—in fact—was substantiated. DeBack testified that defendant 

had something in his hands when he exited Richards’s building. In addition, DeBack testified 

that, when she and Richards were standing in front of their building after the incident, Richards 

was “yelling, ‘He got my phone and my computer.’ ” In his brief to this court, defendant 

suggests other types of evidence that the State could have obtained to confirm whether 

defendant had taken Richards’s cell phone and laptop, such as cell phone site location data. 

However, the State was under no obligation to obtain additional evidence. During closing 

arguments, defense counsel argued this point to the jury—that the police could have done more 

to confirm the location of Richards’s stolen phone. Counsel argued: “Are you saying that the 

Chicago Police Department doesn’t have the ability to say oh, wait, your phone was stolen, 

hold on, we have [a way] to find that phone. *** [Y]ou can say, let me make a call, I’ll let you 

know where it is.” Again, counsel argued: “Nobody since then has ever contacted the phone 

company to say let’s put [sic] the location of this phone. Has it been tried [sic] to restart it? 

Nobody does that.” It was up to the jury, as factfinder, to weigh the persuasiveness of this 

argument.

¶ 47 Sixth, defendant argues on appeal that Richards and DeBack disagreed about whether 

defendant or Richards came down the stairs first after the struggle. Richards testified that she 

came down first. On appeal, defendant argues that DeBack testified that, by the time DeBack 

observed Richards, defendant had already fled the building. However, DeBack’s testimony is 

not as clear on this point as defendant claims. DeBack testified, first, that defendant “came 

down and [Richards] was coming down,” without specifying who came down first. Next, 

DeBack testified that she and Richards were “standing there for a long time waiting on the 

police.” In response to the question, “as you were standing there with [Richards], did you see 

[defendant][?],” DeBack responded no, he had already exited the building by that point. 

Possibly realizing the lack of clarity in DeBack’s testimony about the order in which defendant 

and Richards descended the stairs, defense counsel made the strategic choice not to argue the 

point in his closing argument. An appeal is not the place to raise for the first time a point that 

was fully known but strategically rejected by trial counsel as not significant enough to argue. 

¶ 48 Seventh, defendant argues that, although Richards testified that she urinated on herself 

during the struggle and DeBack smelled it, the responding police officer testified that she did 

not smell it. On appeal, defendant argues that this point demonstrates the insufficiency of the 

State’s evidence. However, this insufficiency was already argued and decided at trial. In 

defendant’s closing argument at trial, counsel argued that the responding officer “[d]oesn’t 
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notice any urination” in order to support his argument that Richards did not suffer a near-death 

strangulation as she had claimed. The indictment accused defendant, of among other things, 

aggravated domestic battery, in that defendant “strangled” Richards. However, the jury 

carefully listened to and weighed the evidence and acquitted defendant of this charge. Thus, to 

the extent that there was an alleged insufficiency in the evidence, the jury’s verdict reflected 

it.

¶ 49 In the case at bar, although only the victim and defendant were present during the struggle, 

the victim’s testimony was corroborated before, during, and after the struggle. It was 

corroborated before by Burch, whose testimony indicated that defendant was following and 

pursuing the victim earlier that same day. It was corroborated during by the voicemail message 

which captured the sounds of a woman crying and screaming in distress. It was corroborated 

after by DeBack, who observed the victim’s physical state, as well as something under 

defendant’s arm, and by the responding officer, who observed both the victim’s physical state 

and that the apartment appeared in “disarray.” In addition, the jurors heard other-crimes 

evidence, which the trial court instructed them they could consider “on the issue of the 

defendant’s propensity to commit domestic violence.” Green’s testimony corroborated the 

testimony of the victim in this case, in that defendant had the propensity to become violent in 

a dating relationship where he thought his status in the relationship was threatened. 

¶ 50 For all the foregoing reasons, we cannot find the evidence insufficient, and we do not find 

defendant’s arguments persuasive.

¶ 51 II. Jury Selection

¶ 52 In defendant’s opening brief, defendant argued that the trial court denied him a fair trial 

when it denied his motion to strike a particular juror for cause. In response, the State argued 

that this issue was waived by trial counsel’s decision not to exercise a remaining peremptory 

challenge against this juror. In addition, the State observed that defendant had not argued that 

trial counsel was ineffective for making this choice. In his reply brief, defendant withdrew this 

argument, and thus, we do not consider it.

¶ 53 III. Venire Question

¶ 54 Lastly, defendant argues on appeal that the trial court failed to ensure that potential jurors 

accepted the presumption of innocence and that this error amounted to plain error because the 

evidence was closely balanced. 

¶ 55 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) provides that the trial “court shall 

ask each potential juror, individually or in a group, whether that juror understands and accepts” 

certain fundamental principles. The first, and most important, principle is “that the defendant 

is presumed innocent of the charge(s) against him or her.” Ill. S. Ct. R. 431(b) (eff. July 1, 

2012). The rule does not set forth a particular litany that the trial court must recite, but Rule 

431(b) does require that “[t]he court’s method of inquiry shall provide each juror an 

opportunity to respond to specific questions concerning the principles set out in this section.” 

Ill. S. Ct. R. 431(b) (eff. July 1, 2012). 

¶ 56 The question of whether a trial court complied with Rule 431(b) is a question that a 

reviewing court considers de novo. People v. Wilmington, 2013 IL 112938, ¶ 26. De novo 
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consideration means that a reviewing court performs the same analysis that a trial judge would 

perform. People v. Aljohani, 2021 IL App (1st) 190692, ¶ 37.

¶ 57 Defendant concedes that he forfeited this claim by not raising it in the court below, but he 

asks us to consider it pursuant to the plain error doctrine. When a claim has been forfeited, the 

plain error doctrine permits us to still review it if a clear and obvious error occurred and either 

(1) the evidence is so closely balanced that this error alone threatened to tip the scales of justice 

against the defendant or (2) the error is so serious that it affected the fairness of the defendant’s 

trial and challenged the integrity of the judicial process, regardless of the closeness of the 

evidence. People v. Sebby, 2017 IL 119445, ¶ 48. Defendant argues error under solely the first 

or closely-balanced prong of the plain error doctrine. See Sebby, 2017 IL 119445, ¶ 52 (“A 

Rule 431(b) violation is not cognizable under the second prong of the plain error doctrine, 

absent evidence that the violation produced a biased jury.”). “The initial analytical step under 

either prong of the plain error doctrine is determining whether there was a clear or obvious 

error at trial.” Sebby, 2017 IL 119445, ¶ 49. 

¶ 58 Defendant also concedes that the trial court questioned potential jurors about whether they 

understood the presumption of innocence. However, he claims that the trial court failed to ask 

whether they accepted it. Specifically, defendant argues that “while” the trial court “gave jurors 

the opportunity to raise their hands if they did not understand the presumption of innocence, 

that was not enough.” 

¶ 59 During jury selection, the trial court told potential jurors that it was about to explain certain 

legal principles and that it would then pose two questions to them. The court stated that the 

first question would be “whether there’s any among you who does not understand that legal 

principle, and if you don’t understand it, you’re required to raise your hand.” Next, the court 

stated that “the second question will be whether there is any among you who does not accept 

the principle of law. So if you do not accept the principle of law that I will announce, I’ll need 

you to raise your hand.”

¶ 60 For three of the four principles, after discussing the principle, the trial court asked the jurors 

(1) to raise their hand if they did not understand it and, then, (2) to raise their hand if they did 

not accept it. However, for the first principle, the trial court inadvertently omitted (2) and, thus, 

failed to ask them to raise their hand if they did not accept it.5

¶ 61 We provide below the trial court’s introductory remarks and the questions posed regarding 

the first and second principles. The trial court’s questions and comments regarding the second 

principle are included for comparison’s sake. The trial court stated:

“I’m going to start with explaining some legal principles to you. I will have two 

questions for you after explaining the simple legal proposition. The question will be 

first whether there’s any among you who does not understand that legal principle, and 

if you don’t understand it, you’re required to raise your hand. And then the second 

question will be whether there is any among you who does not accept the principle of 

law. So if you do not accept the principle of law that I will announce, I’ll need you to 

raise your hand.

5We know this omission was inadvertent because the trial court posed this same question the 

following day when discussing these principles with the potential jurors who were being considered as 

alternate jurors.
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We’ll start with the first legal proposition. The defendant, Mr. Derrick Eubanks, is 

presumed innocent of all the charges against him. Is there anyone who does not 

understand this principle of law, that any person accused of a crime is [p]resumed 

innocent. If you do not understand this principle of law, indicate by raising your hand.

No hands were raised.

Second, before [defendant] can be convicted the State must prove him guilty 

beyond a reasonable doubt. Is there anyone who does not understand this principle of 

law, that the person accused must be proved guilty beyond a reasonable doubt. If you 

do not understand the principle, indicate by raising your hand. 

No hands are raised.

If there’s any among you who does not accept this principle of law, indicate by 

raising your hand.

No hands were raised.”

The trial court then proceeded to properly admonish the potential jurors about the remaining 

principles. 

¶ 62 After over 100 pages of questioning of the potential jurors by the trial court, the court asked 

the parties if they had any additional questions. Defense counsel then had the following 

exchange with one of the potential jurors:

“[DEFENSE COUNSEL]: Let me ask you this. Right now there’s a presumption 

that my client is innocent as the judge has told you, correct?

[POTENTIAL JUROR]: Correct.

[DEFENSE COUNSEL]: And you heard no evidence, correct?

[POTENTIAL JUROR]: Correct.

[DEFENSE COUNSEL]: And you went back to the jury room, it could only be one 

verdict, right?

[POTENTIAL JUROR]: Correct.

[DEFENSE COUNSEL]: And what would that verdict be?

[POTENTIAL JUROR]: For me at this second, unfortunately it would be guilty 

without knowing anything else.

[DEFENSE COUNSEL]: Hearing no evidence?

[POTENTIAL JUROR]: Unfortunately, yes.

[DEFENSE COUNSEL]: And he has the presumption that he’s innocent sitting 

there.

[POTENTIAL JUROR]: Yes. 

[DEFENSE COUNSEL]: So you know that goes against everything that the judge 

has just told you?

[POTENTIAL JUROR]: Right, because you’re innocent until proven guilty.

[DEFENSE COUNSEL]: So under that theory if you’re innocent until proven 

guilty and they have to come to beyond a reasonable doubt and you heard no evidence, 

the only proper verdict you really know would be not guilty, right?

[POTENTIAL JUROR]: I mean in theory. It’s going to be very difficult for me to 

go back and be separated, shall we say, from my history.”
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¶ 63 During a subsequent sidebar, the State agreed that this juror should be struck for cause. 

When the parties returned to open court, defense counsel posed the following question to the 

entire venire:

“Now, I ask the other jurors as a group understanding what we know, that there’s a 

presumption of innocence and there’s no evidence, does anyone have a problem with 

if they went back right now that there’s only one verdict and that would be not guilty: 

Does anyone have a problem with that issue?”

The transcript reflects that defense counsel then stated: “Other than you, sir.” The potential 

juror who had already been struck replied: “Sorry.” Their exchange indicates that no other 

juror came forward. Questioning of potential jurors then continued for another 20 pages.

¶ 64 In Sebby, instead of asking the jurors whether they understood and accepted the four 

principles, the trial court asked potential jurors whether they “ ‘had any problems with’ ” or 

“ ‘believed in’ ” those principles. Sebby, 2017 IL 119445, ¶ 49. Reviewing this language, our 

supreme court found “[t]hat was a clear error” for purposes of the plain error doctrine. In the 

case at bar, the remarks of defense counsel, quoted above, echo the remarks of the Sebby trial 

court, in that they both ask whether the potential jurors had any problem with the principle in 

question. Thus, counsel’s remarks did not remedy the problem.

¶ 65 The State argues that the court in the instant case did instruct the potential jurors that they 

had to both understand and accept all four principles. While true, the trial court did not ask

potential jurors whether they accepted the presumption of innocence. In the exchange above, 

the potential juror indicated that he understood the presumption but he did not accept it. Our 

supreme court has found that a trial court complies with Rule 431(b) if it: “(1) instructs the 

prospective jurors on the four principles, (2) asks if the prospective jurors understand those 

principles, and (3) asks if the prospective jurors accept those principles.” People v. Birge, 2021 

IL 125644, ¶ 34. In the case at bar, the trial court did (1) and (2) with respect to the presumption 

of innocence but overlooked (3). 

¶ 66 In People v. Thompson, 238 Ill. 2d 598, 607 (2010), our supreme court found that Rule 

431(b) mandates a “question and response process.” The rule “requires an opportunity for a 

response” from each potential juror on both their understanding and acceptance of these 

principles. Thompson, 238 Ill. 2d at 607. In the case at bar, the trial court failed to give potential 

jurors the opportunity to respond concerning their acceptance of the presumption of innocence. 

Faced with similar circumstances, our supreme court found:

“[W]hile the trial court asked the prospective jurors if they understood the presumption 

of innocence, the court did not ask whether they accepted the principle. The rule 

requires questioning on whether the potential jurors both understand and accept each 

of the enumerated principles. Therefore, we necessarily conclude that the trial court 

violated Rule 431(b).” Thompson, 238 Ill. 2d at 607. 

Thus, pursuant to Sebby, Birge, and Thompson, we must find that a clear and obvious error 

occurred. 

¶ 67 Although we find a clear and obvious error occurred, we cannot find plain error where 

defendant has failed to show that the evidence in the case at bar was closely balanced. See 

Sebby, 2017 IL 119445, ¶ 48. While a defendant has no burden at trial to present any evidence 

at all, a defendant does bear the burden on review when claiming plain error “to show that the 

evidence is closely balanced.” People v. Piatkowski, 225 Ill. 2d 551, 567 (2007); see also 
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Sebby, 2017 IL 119445, ¶ 51. To satisfy his burden, defendant argues on appeal, first, that the 

jury’s conviction on some charges and acquittal on others shows that the evidence was closely 

balanced. However, one could also find that it shows that the jury carefully considered and 

weighed the evidence before it. 

¶ 68 In the section above, we considered defendant’s arguments attacking the sufficiency of the 

evidence, and we will not repeat them again here. Defendant argues that the evidence against 

him was not closely balanced because (1) with respect to the robbery, there was no evidence 

corroborating the victim’s testimony that he stole her cell phone and computer, and (2) with 

respect to the domestic battery, the evidence corroborating her testimony of an injury to her 

finger was weak and there was no evidence corroborating her claims of other bodily harm.

¶ 69 First, there was evidence corroborating the victim’s testimony that defendant stole her cell 

phone and computer. On cross-examination, DeBack testified that, when she observed 

defendant exit the building, he was “carrying something under his arm.” Later, the defense 

recalled DeBack in its case-in-chief, and she testified that, when she and Richards were in front 

of their building after the incident, Richards was “yelling, ‘He got my phone and my 

computer.’ ” DeBack further testified that “the only reason [Richards] was following him was 

because he had her phone and her computer.” DeBack acknowledged that, when she testified 

in court at a hearing for a protective order, she had not testified at that time to observing 

something in defendant’s hands. However, on cross-examination during the defense’s case-inchief, she explained that hearing was solely about “domestic violence.” Thus, contrary to the 

defendant’s argument on appeal, there was evidence corroborating the victim’s testimony that 

defendant stole her cell phone and computer. 

¶ 70 Second, the State was not required to prove a lasting physical injury to sustain a conviction 

for domestic battery. The statute requires “bodily harm” not permanent injury. 720 ILCS 5/12-

3.2(a)(1) (West 2018). A person is guilty of domestic battery if he or she causes bodily harm, 

“by any means,” to a family or household member. 720 ILCS 5/12-3.2(a)(1) (West 2018). 

“ ‘Family or household members’ include *** persons who have or have had a dating or 

engagement relationship.” 720 ILCS 5/12-0.1 (West 2018). 

¶ 71 The jury acquitted defendant of aggravated domestic battery but found him guilty of 

ordinary domestic battery. Our supreme court has historically defined ordinary battery, as 

opposed to aggravated battery, as “some sort of physical pain or damage.” People v. Mays, 91 

Ill. 2d 251, 256 (1982); see also People v. Cisneros, 2013 IL App (3d) 110851, ¶ 15 (citing 

Mays). In the case at bar, defendant was found guilty of count VIII, domestic battery, which 

charged that he “grabbed and struck Machelle Richards about the body.” See 720 ILCS 5/12-

3.2(a)(1) (West 2018). Contrary to defendant’s argument, there was evidence, in addition to 

Richards’s testimony, to support the jury’s finding that defendant grabbed and struck her. 

¶ 72 DeBack testified that Richards’s face was swollen, that she was shaking, and that she 

looked like she was “in shock.” The responding police officer testified that Richards was 

“visibly upset, distraught, shaken” and that Richards “appeared disheveled and was kind of not 

communicating very well and trying to clean up.” The officer testified that, when she entered 

Richards’s apartment, she noticed that “things were in disarray.” The officer explained that, by 

“ ‘disarray,’ ” she meant “[i]tems were out of place *** just like there had been some sort of 

incident.” The officer testified that she had “responded to a battery in progress call.” In addition 

to the testimony of DeBack and the responding officer, the audiotape also corroborated 

Richards’s testimony that she was the victim of a violent altercation. While the recording is 
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not clear, one can still hear the high-pitched voice of a woman in distress, crying and 

screaming. Lastly, there was the other-crimes evidence showing defendant’s propensity to 

commit domestic violence. Thus, contrary to defendant’s argument, there was evidence 

corroborating the victim’s testimony that she was grabbed and struck by defendant. 

¶ 73 Defendant argues that this case is similar to Piatkowski, 225 Ill. 2d at 554, which involved 

weak identification evidence. In Piatkowski, the issue was “whether an erroneous jury 

instruction about eyewitness identification testimony rose to the level of plain error so as to 

require a new trial.” Piatkowski, 225 Ill. 2d at 554. Utilizing the five Biggers factors which are 

commonly used to assess eyewitness identification testimony (see Neil v. Biggers, 409 U.S.188 

(1972)), our supreme court found that the identifications were weak, and thus, the error rose to 

the level of plain error. Piatkowski, 225 Ill. 2d at 567-68. The instant case bears no resemblance 

to Piatkowski. In the case at bar, there was no issue about identity. Defendant conceded in his 

opening statement that he went to talk to the victim. 

¶ 74 As we already discussed above, the victim’s testimony was corroborated before, during, 

and after the struggle. Burch testified that defendant was following and pursuing the victim 

earlier that same day. The voicemail message captured the event itself, including the sounds of 

a woman crying and screaming in distress. Afterwards, DeBack observed the victim’s physical 

state, as well as something under defendant’s arm, and the responding officer observed both 

the victim’s physical state and that her apartment appeared in “disarray.” The jury also heard 

other-crimes evidence establishing defendant’s propensity to commit domestic violence when 

he believed his status in the relationship was threatened.

¶ 75 For the foregoing reasons, we find that defendant has not satisfied his burden on review to 

show that his case was closely balanced.

¶ 76 CONCLUSION

¶ 77 In conclusion, for all the reasons discussed above, we cannot find defendant’s arguments 

persuasive, and we affirm his conviction and sentence.

¶ 78 Affirmed.